IN THE

TENTH COURT OF APPEALS

No. 10-09-00327-CV

JULIA P. DIAZ, INDIVIDUALLY AS 

HEIR AND ON BEHALF OF THE ESTATE 

OF JUAN DIAZ; MICHAEL BRASHEAR 

AND DEBORAH STAYTON, INDIVIDUALLY 

AS HEIR AND ON BEHALF OF THE ESTATE 

OF PATRICK BRASHEAR,

Appellants

v.

ELLIS COUNTY, TEXAS,

Appellee

From the 40th District Court

Ellis County, Texas

Trial Court No. 66466

MEMORANDUM OPINION

Julia Diaz, individually as heir and on behalf of the Estate of Juan Diaz, her son, 

and Michael Brashear and Deborah Stayton, individually and as heirs of Patrick 

Brashear, their son, appeal from a jury verdict denying liability as to Ellis County for 

negligence. A jury determined that while a special defect was present in a road, neither 

the negligence of Ellis County or Juan Diaz proximately caused the car accident that 
Diaz v. Ellis County, Texas Page 2

claimed the lives of both Juan Diaz and Patrick Brashear. Diaz and Brashear complain 

that the trial court impermissibly responded to a question from the jury, that the 

evidence was factually insufficient to support the judgment, and that a question 

submitted to the jury was improper. Because we find no error, we affirm the judgment.

Coercive Jury Instruction

Diaz complains that the trial court erred by submitting a response to a jury 

question in violation of rules 272 and 286 of the Texas Rules of Civil Procedure. Diaz 

contends that the trial court answered a question made by the jury during their 

deliberations regarding what would happen if they could not reach a verdict by stating: 

“We have the rest of the month to reach a concensus (sic) and then we will make the 

determination of what happens. Respectfully, Judge.” Diaz further contends that this 

question was received and answered without any knowledge of its counsel or any 

opportunity to review the question and response or to make objections. Ellis County 

contends that both parties knew of the instruction and were present at all relevant 

times. Further, Ellis County argues that Diaz made no objections to the trial court’s 

answer during trial and has waived any objection by either not having a record made of 

the discussion or by not objecting to the proposed answer to the jury’s question.

According to Diaz and Brashear, the trial court’s message was a “dynamite 

charge” that coerced the jury to reach a verdict against them. An Allen or “dynamite” 

charge encourages the jury to reach a verdict and is usually given in response to a 

specific communication from the jury indicating it is deadlocked. Stevens v. Traveler’s 
Diaz v. Ellis County, Texas Page 3

Insurance Co., 563 S.W.2d 223 (Tex. 1978) (citing Allen v. United States, 164 U.S. 492, 17 S. 

Ct. 154, 41 L. Ed. 528 (1896)).

The burden is on the party appealing from a judgment to see that a sufficient 

record is presented to show error requiring reversal. Nicholson v. Fifth Third Bank, 226 

S.W.3d 581, 583 (Tex. App.—Houston [1st Dist.] 2007, no pet.); see Christiansen v. 

Prezelski, 782 S.W.2d 842, 843 (Tex. 1990). Both parties have included facts in their briefs 

to this Court that are not contained in the record relating to this issue and that 

contradict each other. While we may accept agreed facts as true, when the facts are not 

agreed we do not act as a fact-finder as to whether or not the trial court presented the 

question to the parties or not. There is no reporter’s record of the proceedings after the 

conference for the charge that was first submitted to the jury until the jury rendered its 

verdict in open court. The jury submitted other questions to the trial court during their 

deliberations as well as prior to the receipt of the complained-of question and response. 

We find that the record is insufficient for us to determine this issue. Therefore, we 

conclude that in order to preserve an issue regarding questions from the jury and 

answers made by the trial court Diaz and Brashear had the duty to request the court 

reporter to record any proceedings involving the discussion of jury instructions. See

TEX. GOV’T CODE ANN. § 52.046(a) (Vernon 2005); see also Elec. Bankcard Sys., Inc. v. 

Retriever Indus., Inc., No. 14-04-00452 CV, 2005 Tex. App. LEXIS 10576 at *7, 2005 WL 

3435294 (Tex. App.—Houston [14th Dist.] Dec. 15, 2005, no pet.) (mem. op.) (Party must 

object to the failure to make a reporter’s record in order to preserve an issue relating to 

the trial court giving a coercive charge to jury). We overrule issue one.
Diaz v. Ellis County, Texas Page 4

Factual Sufficiency

Diaz and Brashear complain that the evidence was factually insufficient for the 

jury to have failed to find that Ellis County was negligent and that the County’s 

negligence proximately caused the accident in question. By attacking the factual 

sufficiency of an adverse finding on an issue on which a party has the burden of proof, 

that party must demonstrate on appeal that the adverse finding is against the great 

weight and preponderance of the evidence. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 

(Tex. 2001). We consider all of the evidence and will set aside the verdict only if the 

evidence is so weak or the finding so against the great weight and preponderance of the 

evidence as to be clearly wrong and unjust. Dow Chem. Co., 46 S.W.3d at 243. The jury 

remains the sole judge of witnesses’ credibility and the weight to be given to their 

testimony. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003).

Negligence

The elements of a negligence cause of action are the existence of a legal duty, a 

breach of that duty, and damages proximately caused by the breach. IHS Cedars 

Treatment Ctr. of Desoto, Texas, Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004). The 

components of proximate cause are (1) cause-in-fact and (2) foreseeability. See Western 

Invs. v. Urena, 162 S.W.3d 547, 551 (Tex. 2005); Mason, 143 S.W.3d at 798. The test for 

cause-in-fact is whether a negligent act or some omission was a substantial factor in 

bringing about the injury and whether the injury would have occurred without the act 

or omission. Western Invs., 162 S.W.3d at 551; Mason, 143 S.W.3d at 799. There is no 
Diaz v. Ellis County, Texas Page 5

cause-in-fact if the County’s negligence did nothing more than furnish a condition that 

made the injury possible. See Mason, 143 S.W.3d at 799.

Unavoidable Accident

An unavoidable accident instruction is an inferential rebuttal instruction. Dillard 

v. Tex. Elec. Coop., 157 S.W.3d 429, 432-34 (Tex. 2005). An inferential rebuttal defense 

operates to rebut an essential element of the plaintiff's case by proof of other facts. Id. at 

430. An inferential rebuttal instruction serves to inform the jury about such a defense. 

See id. To warrant the submission of an unavoidable accident instruction, there must be 

evidence that the accident in question was not proximately caused by the negligence of 

any party to it. See Yarborough v. Berner, 467 S.W.2d 188, 190-91 (Tex. 1971); see also 

Dillard, 157 S.W.3d at 432 n.2. “The instruction merely informs the jury that it may 

consider causes of the occurrence other than the negligence of the parties.” Dillard, 157 

S.W.3d at 433. 

The Charge as Submitted

The trial court submitted a question in the charge inquiring as to whether the 

negligence, if any, of Diaz or Ellis County proximately caused the accident in question. 

The trial court provided the jury definitions of negligence, ordinary care, and proximate 

cause, as well as an “unavoidable accident” instruction—“an occurrence may be an 

‘unavoidable accident,’ that is, an event not proximately caused by the negligence of 

any party to it.” The jury found that neither Ellis County’s nor Diaz’s negligence was a 

proximate cause of the accident.
Diaz v. Ellis County, Texas Page 6

The Facts

Juan Diaz and Patrick Brashear were traveling in Brashear’s Mustang in the early 

evening hours, when apparently what likely was a coyote darted into the road in front 

of them. Although Diaz swerved to the left to avoid hitting the animal, the animal 

made contact and may have been dragged for a short distance. Diaz likely then 

overcorrected back to the right where the passenger front tire fell into a hole caused by 

erosion, ran into the edge of a single-lane wooden bridge, and the vehicle flipped over 

onto its top and slid into a creek. Both Diaz and Brashear drowned after being trapped 

in the vehicle.

The Jury’s Findings

The jury answered affirmatively to a question regarding whether a special defect 

existed in the condition of the road. Thus, the trial court also instructed the jury that 

upon such an affirmative finding that Ellis County was negligent as to the condition of 

the road if: “(1) the condition of the road posed an unreasonable risk of harm; (2) Ellis 

County had actual knowledge or should have known of the unreasonable risk of harm, 

if any, presented by the condition of the road at the time of the accident, and (3) Ellis 

County failed to exercise ordinary care to protect Juan Diaz from the unreasonable risk 

of harm, if any, by failing to adequately warn Juan Diaz of any unreasonable risk of 

harm caused by the condition of the road, and failing to make the condition reasonably 

safe.”

Diaz and Brashear contend that since the accident investigator testified that the 

boys would have escaped with only minor injuries had the vehicle not flipped and that 
Diaz v. Ellis County, Texas Page 7

since they hit the special defect in the road, causing the vehicle to flip, the special defect 

was “a” proximate cause of the accident. Further, Diaz and Brashear contend that the 

County is not excused by an unavoidable accident of the animal darting out in the road

because the accident could have been prevented by filling the eroded area with dirt and 

inspecting the bridge for wood rot or other damage. Additionally, there was no 

warning sign or other indication that the bridge was a single lane bridge.

However, the trooper who conducted the investigation of the accident also 

testified that the vehicle would have gone over the bridge from any location and would 

have flipped over. It was approximately twenty-one feet from the top of the bridge to 

the creek bottom. The causes indicated by the investigation were the wild animal and 

faulty evasive action on the part of Diaz, the driver. Even if the jury was to determine 

that the County was negligent, giving appropriate deference to the jury as the fact 

finders, we cannot say that a finding that the injury would have occurred without any 

negligent act or omission by the County was against the great weight and 

preponderance of the evidence. We find that the evidence was factually sufficient for 

the jury to have determined that neither the County nor Diaz proximately caused the 

accident. We overrule issue two.

Jury Charge Error

Diaz and Brashear complain that the trial court erred in its submission of 

questions in the charge to the jury in that (1) uncontroverted facts were submitted to the 

jury; (2) the wording of the question regarding the special defect was erroneous; (3) the 

use of the term “unreasonable risk of harm” three times in one question constituted a 
Diaz v. Ellis County, Texas Page 8

comment on the weight of the evidence; (4) there was no evidence to support the 

submission of an instruction on “new and independent cause;” and (5) the use of 

multiple inferential rebuttal instructions tends to skew the jury’s analysis.

The County contends that Diaz and Brashear have failed to preserve their 

objections to each of their complaints. Rule 274 of the Rules of Civil Procedure requires 

that a party objecting to the jury charge “must point out distinctly the objectionable 

matter and the grounds of the objection.” TEX. R. CIV. P. 274.

The trial court conducted a charge conference where both parties submitted 

requested questions. The trial court then prepared a written charge and gave both 

parties the opportunity to object to the charge as prepared. The sole objection to the 

charge relating to the negligence question by Diaz and Brashear was: “With respect to 

Question 3, references to adequately warn Juan Diaz, I believe should say ‘duty to 

warn,’ Your Honor, so I reject anything in Question No. 3 in regards to the area of 

warning.” The objections of which they now complain were not made to the trial court 

at all and the objection that they did make to the trial court does not comport with their 

objections in this appeal. See TEX. R. APP. P. 33.1; In re B.L.D., 113 S.W.3d 340, 349-50 

(Tex. 2003). Issue three is overruled.

Conclusion

We find that the record is insufficient to determine whether the jury was 

improperly coerced by the trial court. We find that the evidence was factually sufficient 

to support the jury’s verdict in favor of the County. We find that Diaz’s and Brashear’s 
Diaz v. Ellis County, Texas Page 9

complaints regarding the jury charge were not properly preserved at trial and do not 

comport with their complaints in this appeal. We affirm the judgment of the trial court.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

Justice Reyna, and

Justice Davis

Affirmed

Opinion delivered and filed October 27, 2010

[CV06]